Final appellate order on abatement starts fresh limitation for execution; amendment of defective execution application may be allowed.

An appellate order that judicially determines abatement and refuses revival is treated as a final appellate order for limitation purposes, because it finally disposes of the appeal and gives a fresh starting point for execution under Article 182(2) of the Indian Limitation Act, 1908. The executing court also has discretion to allow amendment of a defective execution application under Order XXI, Rule 17 of the Code of Civil Procedure, 1908, and that discretion will not be disturbed absent error. On these principles, the execution proceedings were held to be within time and the amendment was upheld.

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Issues: (i) Whether the appellate court's order holding the appeal to have abated and refusing revival was a final order for the purpose of limitation under Article 182(2) of the Indian Limitation Act, 1908; (ii) Whether the executing court properly allowed amendment of the execution application under Order XXI, Rule 17 of the Code of Civil Procedure, 1908.

Issue (i): Whether the appellate court's order holding the appeal to have abated and refusing revival was a final order for the purpose of limitation under Article 182(2) of the Indian Limitation Act, 1908.

Analysis: The decisive question was whether the order made by the appellate court was a judicial order which finally disposed of the appeal. The order did not merely record a procedural default; it dealt with the contention that the appeal had not abated, rejected the prayer to continue the arbitration, and refused to set aside abatement. An order of that character was held to be final for limitation purposes, and it furnished a fresh starting point for execution under the statute.

Conclusion: The order was a final appellate order and limitation ran from that date, so the execution application was within time.

Issue (ii): Whether the executing court properly allowed amendment of the execution application under Order XXI, Rule 17 of the Code of Civil Procedure, 1908.

Analysis: The executing court had discretion under Order XXI, Rule 17 to permit amendment of a defective execution application. The appellate court found that the discretion had been properly exercised, and there was no ground to interfere with that conclusion.

Conclusion: The amendment was rightly allowed.

Final Conclusion: The appeal failed on the questions argued, and the decree-holder's execution proceedings were upheld as being within limitation.

Ratio Decidendi: Where an appellate court makes a judicial order that finally disposes of the appeal, that order constitutes the final order of the appellate court and gives a fresh starting point for limitation for execution of the decree.

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